GPSOLO December 2009

TECHNO ETHICSThe Good, the Bad, and the Automatic

By James Ellis Arden

Automating your law practice? Sounds good. Be more efficient. Get more done. Reduce overhead. What’s wrong with that? Well, according to an article in the American Psychological Association’s APA Monitor, the danger of automation is that it makes us complacent. “The more [people] trust a device, the more complacent they become and the less likely they’ll notice when something goes wrong” (Beth Azar, “Danger of Automation: It Makes Us Complacent,” APA Monitor, July 1998, 29:7). Azar recounts the story of the Panamanian cruise ship Royal Majesty, which ran aground off the coast of Nantucket Island in the summer of 1995. The ship had drifted off course because the crew did not know its satellite-based automatic navigational system had failed, and they did not check other information sources that would have warned them they were in danger. The automated navigation system lulled the crew into a false sense of security. Though no one was hurt, the mistake cost Majesty Cruise Lines $7 million in damages and lost revenue.

People who rely too much on automated systems tend to use them as shortcuts for decision making, a phenomenon called “automation bias.” Like the crew of the Royal Majesty who disregarded their own maps and compass, people with automation bias trust their computers and other technologies to keep them out of danger and ignore indicators showing otherwise.

There are myriad ways to automate a law practice. Lawyers can automate with people and/or machines and computers. One fairly universal automation is speed dialing. Instead of typing the same ten-digit phone numbers over and over and over, we store them under one- or two-digit codes. We used to do something similar with fax numbers . (I say “used to” because faxes are becoming extinct thanks to e-mail.)

According to Azar, “You have to accept the fact that on some rare occasions, nearly all automation fails or people fail to operate it properly. In other words, humans abuse it. And when that happens in high-risk systems, the consequences can be disastrous.”

In a notorious asbestos liability case in Baltimore years back, a secretary at the defense firm was given a stack of juror selection strategy papers to be faxed to the firm’s expert consultant. The secretary hit the wrong speed-dial button on the fax machine and sent the papers to the opposition instead of to the defense expert. As a result, the court ordered a new jury to be selected, at the firm’s expense. (The consequences could have been worse!)

Even if you’re a sole practitioner, automating your law practice implicates a lawyer’s duty to supervise (ABA Model Rules of Professional Conduct, Rules 5.1 and 5.3; Cal. Rules of Professional Conduct, Rule 3-110) because there is no one else to check up on you. When was the last time, for instance, you checked your own fax header or sent yourself an e-mail to see how it looks?

Another problem with automation is that it causes manual skills to atrophy. Without practice, people lose their ability to react effectively in emergencies. Stores and restaurants close when the power goes out—not because they don’t have goods to sell or food to cook, but because they can no longer do the math themselves.

Yet another problem with automation: “automatic equipment seems to function best when the workload is light and the task routine: when the task requires assistance, when the workload is highest, this is when the automatic equipment is of least assistance—this is the irony of automation” (Donald A. Norman, “The Problem of Automation,” Philosophical Transactions of the Royal Society of London, B327, 1990; available online at www.jnd.org/dn.mss/Norman-overautomation.pdf).

Norman writes of a 1985 China Airlines 747 that suffered a slow loss of power from its outer right engine. That slow loss that would have caused the plane to noticeably yaw to the right had the autopilot not been compensating—until the autopilot finally reached the limit of its ability to compensate and keep the plane stable. At that point, the crew did not have enough time to determine the cause of the problem and take action, so the plane rolled and went into a vertical dive of 31,500 feet. The aircraft was badly damaged; it did finally recover from the dive. According to Norman:

Automation has clearly improved many aspects of performance. It leads to superior productivity, efficiency, and quality control. In aircraft, fuel efficiency is improved, schedules can be maintained in inclement weather, and overall accident rates have gone down. But automation also leads to difficulties. When problems arise, the crew may not be sufficiently up-to-date with the current state of the system to diagnose them in reasonable time, and the general reliance on automatic systems may have led to a degradation of manual skills.

Let’s hope the crews keep fresh batteries in their calculators.

According to many, in fact, automation is a suspected cause of our current economic recession/depression. An article by George F. Hurlburt, Keith W. Miller, and Jeffrey M. Voas (“An Ethical Analysis of Automation, Risk, and the Financial Crises of 2008,” IT Professional, January/February 2009, 11:1) explains that the financial managers who built the investment houses’ financial models did not understand the “elegant mathematics” underlying those models and further skewed those models by infecting them with assumptions useful for selling the financial instruments but which were ruinous for the economy as a whole.

The authors contend that a fundamental, underlying cause of our economic woes is the cavalier approach taken to applied risk management, an approach that was only possible because of the use and/or abuse of automation . “Thus, when it was time to alert buyers to the dangers emerging as conditions changed, the risk management programs failed to raise the alarm: Their thresholds were skewed toward the underlying false and overly bullish assumptions.”

Lawyers should be particularly aware of certain potential automation hazards. For instance, the task of keeping all of the different software in our computers up to date is rather onerous, driving us to use “automatic updates.” Automating the task of updating software is a necessary evil—“evil” because we don’t need all those updates.

First, “if it ain’t broke, don’t fix it” is just as good advice for computers as for anything else. If the software you are using does what you want, when you want it, then why update it? The exception, for me, is anti-virus and anti-spyware software. That stuff should be updated as often as possible. For everything else, I turn off automatic updates.

Microsoft is famous for updating its software for its advantage, not ours. And several of its big Windows updates, known as “service packs,” were known to render perfectly good computers inoperable. (It is apparently legal to market and sell defective software, so long as you distribute service packs now and then. I’m on Windows XP Pro SP3,lingo for “Service Pack 3.”)

Speaking of “automatic,” Microsoft, which is in the process of releasing Windows 7 (to replace its poorly received predecessor, Vista) made Windows 7 Release Candidate (RC) available to the public for “free” on May 5, 2009. Anyone can get RC for free, but beginning March 1, 2010, any computer on which it is installed will begin automatically shutting down and then restarting—every two hours! This is supposed to encourage those who accepted the free version to pay for it.

Speaking of automatic updates and Windows 7 RC, Microsoft is planning to release ten fake updates for RC, which will install automatically. Microsoft says it wants to verify its “ability to deliver and manage updating of Windows 7 in certain real-life scenarios.” Fake updates will verify “real life.”

Lastly, you may already be hearing about “cloud computing,” which can be a useful way to automate certain facets of a law practice. In very simple terms, cloud computing means using the Internet and Internet service providers in place of in-house computer functions or storage. For example, some companies provide Internet calendar services for lawyers. You enter calendar information on a website instead of a leather-bound book. Other companies offer online file storage and Internet “meeting rooms.” You can upload all your files to their website and then access them from anywhere you can get on the Internet; or you can conduct chat or video sessions with associates or clients.

But be careful about how you set up your practice if it will be heavily dependent on Internet communications. Service providers can make it easy to automate certain tasks, but if you’re trusting a website with client information, you’re also trusting the site to maintain appropriate safeguards for privacy and confidentiality. What happens if the Internet site used for cloud computing goes up in smoke? What happens if you can’t connect with it when you want to?Answer: manual backup plans—tested occasionally to make sure they’ll work when you need them.

James Ellis Arden practices law in the Los Angeles, California, metropolitan area and specializes in litigation, attorney ethics, and client relations. He may be reached at persuade@ardenlaw.com.